GENERAL TERMS AND CONDITIONS OF SALE
For all sales of Products and / or accessories („Products“) performed by the Seller the Conditions of Sale defined in this respect shall apply, to the extent that they are not conflicting with other provisions, which shall have to be laid down in a special written agreement between Purchaser and Seller. Any other existing general terms and conditions in the purchase orders of the Purchaser remain unaffected thereby, even though they were not explicitly declared to be invalid by the Seller.
1 DELIVERY TERMS
The delivery terms laid down in the order confirmations shall not be binding and the Seller shall not acknowledge any claims of the Purchaser in case of delays in delivery, unless the delivery terms are explicitly confirmed by the Seller in a separate document without any reservation. Unless otherwise stipulated in the order confirmation, the Products are deemed to have been sold ex works (loaded on transportation vehicle). The Products will be supplied by the Seller by having been packed, labelled and marked according to the requirements of the Seller. These terms and conditions (like among others the aforesaid delivery term „ex works“) have to be interpreted according to Incoterms 2010, which are issued by the International Chamber of Commerce and are an integral part of the current terms and conditions („Incoterms“).
2 RETENTION OF TITLE, RISK
The ownership rights of the Products shall be transferred to the Purchaser, if the total gross price has been paid to the Seller. Until the Products have been transferred into the complete ownership of the Purchaser, the Purchaser has to take care that the Products of the Seller being in his possession at Purchaser’s site shall be identifiable as ownership of the Seller at any time by the Seller or his authorised person. In case of a resale the Seller has the possibility to request the purchase amount, which corresponds to the resold goods including any accessories. The retention of title shall continue to exist for the sold goods, even if these are in the possession of third parties. Upon request of the Seller the Purchaser has to provide all documents and to undertake all actions, which are necessary or required, in order to implement the retention of title in the country of the Purchaser. Independent from the retention of title the Purchaser in any case exclusively has to pay the storage costs and the risk of a damage or destruction or the loss of the sold Products, as soon as the Products independent from the individual shipping method were delivered according to the Incoterms Conditions.
3 PRICES
The Purchaser has to pay to the Seller the agreed price for the Products without any deductions or discounts for the Products, if the Seller has not informed something different in writing. Irrespective of the aforesaid regulation the Seller without prior written information and without approval of the Purchaser has the right to index and invoice the agreed price. The Purchaser then has to pay the newly indexed price. The newly indexed price has to comply (a) with the agreed sales price of the Products and a fraction number, whereby (b) the fraction’s numerator is equal to the (i) fraction index score of the MEPS for the steel prices in the EU (HD Galv. Coil, ref 1997), is three months prior to the date of the delivery, and as (ii) denominator the fraction index score of the MEPS for the steel prices in the EU (HD Galv. Coil ref 1997), is three months prior to the date of the order confirmation. Unless otherwise explicitly agreed in writing, the agreed sales price will be invoiced at the time of the order confirmation, if due to the mentioned index value the indexed price is lower than the price agreed during the time of the order confirmation.
4 TAXES AND DUTIES
4.1 All current and future imposed taxes, excise taxes, fees and charges of all kind, which are imposed in connection with the Products, have to be paid by the Purchaser, unless these concern taxes and fees, which have to be paid as advance performance by the Seller prior to the delivery of the Products for the
fulfilment of the agreed Incoterm-Conditions.
4.2 If the delivery of the Products due to the intra-community nature of the delivery or due to the export provisions for the supplied Products is exempted from VAT, and the Purchaser takes over the transportation of the Products at own risk and on own account (Incoterm EXW, FOB, FCA, etc.), the Seller shall only be obliged to waive VAT, if the Purchaser provides him with a delivery proof concerning the delivery of the Products in the country of destination.
5 SETTLEMENT – PAYMENT – DEFAULT OF PAYMENT
The invoicing of the Seller to the Purchaser and the payment of the Products of the Purchaser to the Seller and disclosure of the invoice amount shall take place in Euro („€“ or „EUR“) after each delivery. Settlement of the invoice to the Seller shall be made by the Purchaser within thirty (30) days from invoice date of the Seller. If the payment has not been effected until maturity date, the Purchaser owes to the Seller statutory default interests accrued for the default for all due commercial transactions amounts. Default interests shall also become due for payment in case of extended agreed date of payment, if this extension has explicitly been granted in writing to the Purchaser by the Seller, or if a legal title for payment was obtained vis-à-vis the Purchaser.
The payment of these default interests shall not entitle the Purchaser for deferment of payment when paying the actual payment amount. The deferral of the payment term does in no way lead to a debt conversion. Even if the Purchaser has been granted or conceded an extension of the payment term, the Seller shall be entitled to invoice to the Purchaser a lump-sum compensation, which amounts to 10 % of the due amount, however at least to 250.00 EUR, which accrue for the payment of the additional administrative costs and expenditures (including the reasonable costs for an out-of-court instructed legal advice) in connection with the recovery of the outstanding amount. Furthermore, the non-payment of an invoice at due date immediately and automatically entitles for a cancellation of granted instalment payments for previous invoices, and all invoices hence shall immediately become due for payment. Under such circumstances and / or if the Purchaser is insolvent or if his credit line has been reached (for example by the issue of bounced bills of exchange or cheques), the Seller is entitled to amend with direct effectiveness the terms and conditions in such a way, that for each new delivery cash payment will be demanded, and, if necessary, reasonable securities may be required by the Purchaser in writing. In the event that the Purchaser is not in agreement with the then new payment conditions of the Seller, or if he is unable to furnish adequate securities, the Seller at his own discretion may postpone all further deliveries until all payments have
been made and possible securities were furnished, and the Seller may cancel ongoing product orders, where appropriate, without the existence of a claim on any compensation.
Any objections of the Purchaser shall not entitle him for a reduction of the purchase amount or to a retroactive reduction of purchase amounts already due. If the Purchaser does not accept the Products at the agreed delivery date due to a fact, for which the Seller is not responsible, the Seller immediately and without notice of default or other information shall be entitled to invoice the Purchaser with additional costs in the amount of 0.5 % of the prepared invoice value of the Products for each week started as from the original delivery date. In the event that the Purchaser has not collected the Products after a period of ninety (90) days
after the original delivery date, the Seller shall be entitled to withdraw from the sales contract or to annul it, notwithstanding the application of the provisions resulting from subsequent contractual paragraph 9.
6 FORCE MAJEURE
None of the parties shall be made liable vis-à-vis the other party for breaches of contract or default, which are caused due to force majeure, fire, explosion, strike, riots, civil war or intergovernmental war, invasion, epidemics, storm damage, earthquakes, the refusal of authorities to issue import and export
licences or their withdrawal, or which result from an inability, so that one or several raw materials or components of third parties may not sufficiently be provided due to force majeure or which are due to other causes occurred, which are totally excluded from control of one of the two participating parties.
7 GUARANTEE
7.1 The Seller guarantees (i) that at the time of the delivery of the Products the Products comply with the specifications of the order confirmation taking into account the usual deviations, which are consistent with existing and generally accepted Euro Norms and their application with respect to the Products, and
(ii) that for a period of 5 years from delivery date no perforation from corrosion occurs at the Products under the subsequent conditions defined in the terms and conditions.
7.2 All technical recommendations delivered by the Seller for the use or for the intended period of use of the Products, irrespective as to whether oral or written, have been delivered in all conscience according to the generally acknowledged state of the art in research and technology. The
recommendations shall not release the Purchaser in any way from his duty to examine the Products delivered by the Seller on the suitability and / or the applicability for the intended use and to perform this examination prior to use. Use and processing of the Products for a specific application are therefore the
sole responsibility of the Purchaser.
7.3 Guarantee conditions Guarantee shall only be given, if the following is observed for the handling with the Products or the components:
(i) Products or components may only be transported and stored in the original package according to instructions of the Seller (instructions concern among others the storage at a safe place, minimum temperature, max. humidity, neutral atmospherical conditions, etc.) or, if not defined more in detail,
Products or components may only be handled in the way, as it generally complies with Products of the type;
(ii) Instructions and guidelines of the Seller may only be amended upon consultation with the Seller or they have to be drawn up, in case a consultation is not possible, with the same care and attention as customary practice for Products of the type;
(iii) Products and components may only be assembled according to the instructions and guidelines of the Seller (for example during assembly the protective foil of 5 panels completely has to be removed, so that any irregularities may be discovered and reported) or, if no regulation exists, the Product at least has to be handled with the same care and attention as generally customary and approved for Products of the type;
(iv) Products and components may neither be processed or mounted after improper transportation nor after inadmissible fitting methods, changes or inadmissible attemps to modify; Regulation 2008/1
(v) Products and components may only be subject to a „normal use“ for the intended purpose and may not be misused, damaged or improperly be used for other purposes. The term „nomal use“ used in this respect defines a regular, normal and experienced use of the Products, as intended and / or recommended by the Seller;
(vi) Products and components always have to be maintained according to the instructions of the Seller. If no instructions are present, maintenance works at least have to take place in regular timely intervals and customary practice for Products of this type. Furthermore, and in addition to the regulations and customary procedures, which are generally applicable for Products of this type, the Purchaser and in case of a resale his customer and the end consumer shall have to observe the following – by adhering all regulations of the best expertise and all safety measures and precautions during performance of the
subsequent instructions:
(i) Non-coated cutting edges or Products affected by corrosion immediately have to be treated with materials and procedures according to instructions of the Seller. In addition, (ii) regularly, however at least once in a year, the Products and the casing of the building have to be inspected, in addition (iii) the Products regularly have to be cleaned, whereby cleaning has to be executed according to the guidelines and instructions of the Seller, or, if no instructions are present, the Products at least have to be handled with the same care and attention as generally customary and
approved for Products of the type.
7.4 The Seller shall not assume liability for damages or for loss of the Products and components, which are caused by or result from (i) moisture condenses, mould, or other stain formation, which come from storage or construction conditions, which do not comply with the guidelines and instructions of the Seller
or which failing that, do not comply with the usual guidelines as generally customary for Products of the type, or (ii) corrosion of untreated cutting edges or at corrosion or delamination due to impacts on the Products by coatings, corrosive materials and gases, which contain acids, bases or solvents or abrasive
materials, or (iii) exposure to extreme temperatures, or (iv) wear and tear, or (v) corrosion or other appearances, which result from causes, which are to be found within the building, or which result due to contamination between transitions or by abnormal atmospherical contaminations due to contact with aggressive steams or chemicals, or (vi) the emission of detrimental gases, steams or chemicals from natural or artificial sources, which are in the vicinity of 500 metres of the site, where the Product has been mounted, or (vii) the accumulation of dirt or stagnant water on roofs and / or incomplete closed
transition zones, whereby water and other contaminating substances are bound, or (viii) force majeure, as defined in the aforesaid section 6, and hence result from events like for example earthquakes, hail, storm, gales, explosions, fire, riots, acts of war, and other events of the nature, which are totally excluded from control and hence liability of the Seller, or (ix) inactivity on the side of the Purchaser and third parties, including among others the workmen and employees, customers, agents, transportation carriers and the supplier of the customer. Each Product manufactured by a third party and supplied by the Seller, or components therefrom, are subject to the original guarantee of the manufacturer concerned, and in the substance of the matter the guarantee is given by the Seller, which itself is granted to the Seller by this manufacturer.
7.5 Colours and Shades of Colours
Unless otherwise agreed in writing, the Seller shall not guarantee the uniformity of the colours and shades of colours. Even during delivery of a lot of one or several suppliers differences in colour may occur and are excluded from replacement of the goods. This shall also apply for parts of edges, accessories and upon ordering of different steel thickness. Colour indexes and / or colour photos of Products in catalogues, brochures and other advertising materials of the Seller are only listed according to the published descriptions and may deviate from the actual colour and colour shading.
7.6 Guarantee Claims with respect to Improvement or Replacement due to Guarantee Demands
Guarantee claims have to be asserted vis-à-vis the Seller within 24 hours after detection of defects by quoting the particulars by registered letter with return receipt !!!
7.7.1 Measures for still unprocessed or not yet mounted Products.
If the Seller acknowledges a guarantee claim for the supplied Product or a part of the Product, he reserves the right to find a remedy at his expense and own discretion, by (I) improving, correctively adjusting or repairing the Product or the relevant part of the Product (like drilling of air pockets): or (II) by replacing the Product or components, or (III) by reimbursing the purchase price, or (II) if the purchase price was not yet or not yet fully paid by the Purchaser, to reduce the purchase price or (v) the customer withdraws from the purchase contract and is compensated with the relevant purchase amount. At least one spare part needs to fulfil the relevant function for the original part of the Product. Products and / or components to be exchanged pass into the ownership of the Seller and upon request of the Seller and at his expense and his risk will be returned to the Seller by the Purchaser.
7.7.2 The improvement, adjustment and correction of already mounted and processed Products and / or components, which are subject to guarantee, covers the costs for material and work and shall not extend the original guarantee period. The replacement of already mounted and processed Products and / or components, which are subject to guarantee, covers the costs for material and work and shall not extend the original guarantee period.
7.7.3 Return Dispatch of defective Products or Components to the Seller and Re-Dispatch to the Purchaser
(a) Defective Products or components shall under no circumstances be returned by the Purchaser without the prior written consent of the Seller.
(b) Prior to the return of defective Products or components to the Seller the Seller determines in consultation with the Purchaser, as to whether the exchange or the improvement of the Product shall be executed at the processing site or at the Seller or at a third party instructed by him.
(c) If it turns out that a replacement or an improvement is not necessary, the costs for package, transportation and insurance for the alleged defective Product or part of the Product shall be transferred from the Seller to the Purchaser. These costs will be reimbursed by the Seller, if the necessity of an improvement or an exchange can be evidenced.
7.8.1 The measures defined in section 7.7.1 represent the sole and exclusive legal remedies of the Purchaser and the sole and exclusive liabilities of the Seller within the scope of the guarantee for which he is responsible, which in no case may exceed the sales price of the replaced Products and for which an assumption of any costs for derived damages are excluded.
7.8.2 The measures resulting from section 7.7.2 represent only a guideline for additional costs of the performed assembly and disassembly costs, they orientate on marketable cost rates, if it is ascertained that no defect existed or was not ascertainable prior assembly or installation of the Product, and on
condition that the Purchaser explicitly fulfilled his damage limitation duty and has duly performed all assembly provisions, whereby explicitly replacement for derived damages is excluded.
7.9 The guarantees laid down in these terms and conditions are not applicable on Products purchased by the Purchaser, which showed damages and defects already visible for the Purchaser and / or for Products, which were offered or sold by the Seller as „second quality“.
8 COMPLAINTS
8.1 At the time of delivery the Purchaser instantly has to examine the Products with respect to the correct quantity, measurements and weight and he has to execute a comparison of the delivery dates with the order confirmation and to inspect the Products as to visible damages, to notify them on the delivery note and to have them countersigned. An unconditional acceptance by the Purchaser means, that the delivery acknowledged by him fully complies with the order confirmation. In the event that the Purchaser has reservations insofar, that the content of the delivery deviates from the order confirmation, a subsequent delivery shall take place after detailed and justified complaint by way of a registered letter with return receipt to the Seller within five (5) days after delivery of the Product.
8.2 If the Products are not shipped at the expense and/or at risk of the Purchaser, he in case of a loss of and/or transportation damages at the Products has to address to the Seller a justified and detailed complaint by registered letter (or in case of transportation according to CMR to the forwarding carrier).
8.3 Defective Products have to be made available to the Seller at no expense, in order to enable him to make a survey in court or out-of-court proceedings. They may only be returned to the Seller with his prior written consent.
9. PURCHASE WITHDRAWAL
9.1 If (i) from or against the Purchaser insolvency proceedings were filed, or (ii) if the Purchaser is insolvent or (iii) has been declared to be bankrupt or his creditworthiness due to the issuance of bounced cheques or bills of exchange is impaired, or (iv) if from or against the Purchaser proceedings were initiated, which will entail the appointment of a bankruptcy receiver, a compulsory liquidation, a windingup of the company, a debt restructuring or have other equal or similar measures as a consequence, or (v) if the Purchaser is no longer in a position to meet his payment obligations vis-à-vis the Seller, or (vi) if it is ascertained, that the majority control with respect to the shareholder structure of the Purchaser is no longer executed by the shareholders, which was still in existence during the time of the purchase agreement and hence the interests of the Seller could be impaired, he at his own discretion has either the right to effect the sale regarding the upholding or continuation of the business relationship against cash payment or to withdraw from the sale. In the latter case the sales agreement is automatically and without preceding notice of default or termination with immediate effect cancelled, as soon as the Seller has expressed his will to withdraw from the purchase contract in writing. If the Seller has already supplied the Products to the Purchaser, the Seller is without reservation entitled to come again into possession of the identifiable Products by way of out-of-court proceedings, whereby the Purchaser or his bankruptcy receiver, liquidator or authorised person has to support the Seller in the execution of the repossession of the Products.
9.2 If the Purchaser cancels a purchase order, the Purchaser undertakes to pay to the Seller a flat rate sale cancellation fee of 20 % of the purchase order amount, subject to the right of the Seller to request a higher compensation amount, if for the latter case the loss can be evidenced. If the Purchaser does not accept an already placed order, the Purchaser is obliged to pay regardless of the right on handling remuneration for at most ninety (90) days the total order amount to the Seller as lump-sum indemnity. Advance payments already received by the Seller on Ver. 2008/1
General Conditions of Sale, Trier Insulated Panels GmbH, Föhren (Local Court of Wittlich, company no. 43988)
(Last Update: 06.12.2024)
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